Employer argues worker violated clients' confidentiality
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker in the addiction treatment sector who was made redundant but claimed the dismissal was unfair.
The case highlighted important issues around redundancy processes, redeployment obligations, and employee misconduct discovered during a redundancy period.
It serves as a reminder for employers to follow proper procedures, even when restructuring, and for employees to be mindful of their ongoing obligations until their very last day of work.
Background of the case
The worker had been employed as a part-time support worker at a therapeutic community facility since early 2020. She also held a casual position as a night weekend supervisor.
The worker's employment as a part-time support worker commenced on 17 February 2024, while her casual night weekend supervisor role began on 2 August 2021.
In January 2024, the employer informed her that a review of staffing arrangements would be conducted. The FWC said that the review’s motivation appeared to be founded upon multiple issues, including the time taken for handovers between part-time support workers and the impact on the running of the withdrawal unit.
Following the review, the employer decided to make the worker's part-time support worker position redundant and create a new full-time senior support worker role instead. The findings of the review were communicated to the worker on 5 February 2024.
The worker applied for the new senior support worker position but was unsuccessful. She also applied for a full-time night weekend supervisor role that became available but was not selected for that either.
The worker's employment was terminated effective 5 April 2024. This included both her part-time support worker role and her casual night weekend supervisor position.
Key issues in dispute
The main points of contention were:
- Whether the redundancy was genuine
- If the employer had met its consultation obligations
- Whether it would have been reasonable to redeploy the worker
- If the termination of the casual role was unfair
The worker argued her position was still required and that it would have been reasonable to redeploy her. The employer contended the dismissal was a genuine redundancy and not unfair.
The employer provided evidence that it had conducted a review of staffing arrangements due to concerns about inefficiencies and task allocation between part-time support workers and nurses. A review committee was established and met on or around 11 December 2023.
According to the employer, the review found that:
"...there was a lot of time wasted in the [worker’s unit] due to the part-time support workers and nurses having to handover tasks, and at times they were not in contact with each other."
Based on this, the employer decided to replace two part-time support worker roles with one full-time senior support worker position. They argued this would increase efficiency and provide more consistent treatment within the service.
The employer contended that it had complied with its obligation to consult with the worker regarding the redundancy of her position. On 16 January 2024, the worker was informed that her position could be modified or abolished. The worker was then interviewed as part of the review process between 16-19 January 2024.
Worker’s misconduct discovered
Another crucial factor in the case was misconduct by the worker discovered just before her employment ended. On 3 April 2024, the employer met with the worker to address an email she had sent on 31 March 2024 to her personal email address from her work email, which contained consumer information.
When confronted, the worker admitted to sending the emails but claimed she had no intention of sharing the information and was just trying to demonstrate her competency. However, the FWC found this explanation inadequate, stating:
"The purpose of the [worker] sending herself the [employer's] emails was not for the purpose of using the consumer's information as was only necessary to assist in the provision of services to the consumer, but to support the [worker's] future argument that she was competent in her job. It was a self-serving act that did not put at the forefront the obligations she owed, as an employee of the [employer], to those consumers that were in the [employer's] care and to the [employer]."
After the worker's employment ended, the employer discovered that she had sent a total of 46 emails from her work email to her personal email address.
FWC's decision on redeployment
The FWC determined that while redeployment may have been reasonable prior to discovering the misconduct, the worker's actions constituted a valid reason for dismissal.
The decision stated:
"I am satisfied that it was not reasonable to have redeployed the [worker] in the [employer] organisation."
Ultimately, the FWC dismissed the worker's unfair dismissal application. It found the redundancy was genuine and that redeployment was not reasonable given the discovered misconduct.
"Having considered each of the matters specified in s 387 of the Act, I am satisfied that the termination of the [worker's] casual employment was not harsh or unjust or unreasonable," the FWC said.
As for the discovery of the misconduct affecting redeployment opportunities, the FWC said that employers may rely on misconduct discovered after a dismissal decision, as long as it occurred prior to the termination taking effect:
"I am satisfied, in response, that these decisions confirm that the reasons for termination relied upon need not be confined to the reasons given at the time of termination and can extend to include other reasons if they can be established by evidence provided to the Commission at the time of hearing," the FWC said.
